CAAF Grants New Case: White--Search Authorization Validity

8/11/2020

CAAF announced today that it granted a new case for review on Friday. The case deals with the probable cause to support a search authorization. CAAF's jurisprudence on this narrow area of law is expanding rapidly. NMCCA opinion here. DJ text here:

"No. 20-0231/NA. U.S. v. Jerry R. White. CCA 201900221. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue:

DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?"

Brenner Fissell

EIC

Contract Lawyer

8/12/2020 11:31:03 am

The problem I have with the search authorization, in addition to applying the authorization broadly to any electronic device in appellant’s home, is that the format of the agent’s request is what seems to constitute the “rubber stamp” and it is the nature of the request that causes it to lack probable cause. Though the CO should not have granted authorization, the agent should not have submitted the request. From my time as a magistrate, I recognize the information about these suspects being collectors and this is something agents apply in boilerplate fashion to all their requests to search for child porn. I have been persuaded by this type of information, but I also wanted to see fresh informal to tie the authorization to specific devices that may contain evidence. The timeline in the decision is not clear, but the information appears to be stale. Even with the agent’s “collector affidavit,” there still should be something recent to tie the information to the appellant. For many purposes, tighter time frames are required, but for child porn around 12 months may be reasonable. If the information about the suspect is over a year old, then probable cause is less clear. I am not an expert in this area, but my criticism is that it is the agent who came forward with the request for authorization and I believe that the agent is responsible for stretching stale evidence to obtain the authorization. Instead of viewing the agent’s conduct as “good faith,” I believe the agent is equally responsible for the deficient search authorization and I agree that this evidence should be excluded. I hate the fact that an accused may walk if the evidence is excluded, but I also hate the fact that law enforcement can get away with attempted short cuts in requesting authorization.

Contract Lawyer

8/13/2020 12:03:32 pm

I mean to say “fresh information”. Auto correct changed it to “informal”.

Philip D. Cave link

8/12/2020 11:48:17 am

CL, you are (correctly IMHO) critiquing the boilerplate affidavit MCIOs use in most cases these days, including 120 cases. They assume IMHO, that magistrates will be persuaded by all the stuff about education and experience and fail to examine closely the actual case specific probable cause.

Frankly, IMHO, the affidavit is no better than seeking a "general warrant," which I always understood to be a reason for why we have the Fourth.

Contract Lawyer

8/13/2020 12:13:38 pm

The “collector memo” the agent writes is a new memo for the specific request, but I viewed that information as justification to request authorization to search when the information was somewhat stale by normal standards. The info would show activity 6 to 12 months ago. If this were dope, this is clearly stale, but the memo seems to justify up to 6 to 12 months of staleness. After a year, I would scrutinize it more. This is all subjective, but if the CO approves the agent’s request, I do not see allowing much leeway for good faith. I am just a contract lawyer and not an expert, but I was also the one they often appointed to be a magistrate or Art. 32 investigator.

Contract Lawyer

8/13/2020 12:16:17 pm

Here I view the agent as the de facto approval authority or magistrate for his own request.

Scott

8/12/2020 12:15:13 pm

I’ve always wondered whether the rationale behind the good faith exception was equally applicable to search authorizations granted by a military commander rather than a magistrate / judge.

Implicit in the underlying rationale seems to be the idea that a trained and neutral official granting an authorization gives it a degree of legitimacy and serves as a shield against frivolous searches. But when the official granting the authorization is a commander, they are really neither trained nor neutral. Certainly my experience is that commanders grant nearly any authorization requested of them.

In this case it does say that the SJA was involved in reviewing the authorization request.

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CAAF Grants New Case: White--Search Authorization Validity

Brenner Fissell

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